Smagula v. Town of Hooksett
| Decision Date | 25 August 2003 |
| Docket Number | No. 2003-076.,2003-076. |
| Parties | RENE R. SMAGULA v. TOWN OF HOOKSETT <U>&</U> <U>a</U>. |
| Court | New Hampshire Supreme Court |
Upton & Hatfield, of Concord (Barton L. Mayer on the brief and orally), and Gallagher, Callahan & Gartrell, P.A., of Concord (Michael D. Ramsdell on the brief), for the defendants.
The plaintiff, Rene R. Smagula, appeals an order of the Superior Court (McGuire, J.) upholding the defendant Town of Hooksett's (town) rejection of his protest petition. The plaintiff argues that the court erred in excluding property owners in a neighboring municipality from the petition, and in permitting the town to dispute the accuracy of its own tax maps with outside data. We reverse and remand.
The following facts are undisputed or supported by the record. In 1990, the town's planning board amended its zoning ordinances to create Multi-Use District #5 (MUD5), a tract of 3,300 acres owned by defendant Manchester Sand, Gravel & Cement Company, Inc. (MS&G). On February 7, 2002, MS&G requested that the town amend MUD5. The proposal, zoning amendment #15 (amendment 15), would redesignate wetlands within the district and allow for significant development of the land.
On March 11, 2002, the planning board voted to submit amendment 15 to the town's voters. Normally, such an amendment requires the approval of only a simple majority of voters. See RSA 675:4, III (Supp. 2002). If, however, a protest petition is submitted within seven days of the vote, a two-thirds majority vote is necessary to adopt the amendment. RSA 675:5, I, II(b) (1996). The petition must include the signatures of either (a) "[t]he owners of 20 percent of the area of the lots included in [the] proposed change" or (b) "[t]he owners of 20 percent of the area within 100 feet immediately adjacent to the area affected by the change or across a street from such area." RSA 675:5, I-a.
On May 7, the plaintiff and a group of landowners (petitioners) submitted a protest petition regarding amendment 15. The town deferred a determination of the petition's validity until after the May 14 vote, at which fifty-eight percent of the voters supported the amendment. On May 22, 2002, the town examined the protest petition at a public meeting. The petition, which was calculated based upon the town's tax maps, purported to include the owners of 31.28 acres of the 151.80 non-government-owned acres "within 100 feet immediately adjacent" to MUD5. RSA 675:5, I-a. The petitioners thus claimed to have the necessary twenty percent (30.36 acres) of the net acreage necessary under RSA 675:5, I-a with only 0.92 acres to spare. Approximately 7.7 of the 31.28 acres, however, were located in the neighboring municipality of Allenstown. At the conclusion of the hearing, the town declared it needed more time to investigate the matter.
The town conducted its own survey of the property abutting MUD5. In a June 12, 2002 memorandum to the town council, town administrator Michael Farrell stated that:
The Town verified the net area (total perimeter area minus the abutting governmentally owned property) of the 100-foot wide perimeter from the same data used by the petitioners' agent, which came from the official Town of Hooksett Tax Maps. As a cross check, the Town also used data from the Town's Geographic Information System, as well as data supplied from Holden Engineering & Surveying, Inc. The conclusion in all cases was the same. The petition is invalid.
The memorandum also concluded that the 7.77 acres of Allenstown property could not be included within the petition, and that one of the Hooksett property owners was not in fact within 100 feet of MUD5. Based upon these exclusions and new data, the memorandum found that the petition included only 22.02 of a necessary 30.95 acres, and thus lacked the requisite twenty percent. After receiving the memo, the town council voted to reject the petition. Other than the Farrell memo, the record contains no explanation for the town council's decision.
The petitioners appealed the town's decision to the superior court. The court found that the town was correct to exclude the property owners in Allenstown, resulting in property acreage "far below the required 20 percent." In the alternative, the court found:
[T]he petition is still not valid as the protest petition contains miscalculations of other areas included in the 20 percent. In making his calculations, the Petitioner relied upon the Town's tax maps and scaled from those. The Town, on the other hand, did not limit itself to tax map data but also considered survey and deed information. The Town solicited information from the Petitioner as well as from MS&G. MS&G had engaged Holden Engineering to make relevant calculations which it did using the 1990 Ordinance and relying on actual surveyed boundaries of MS&G's properties, recorded plans, deeds, and tax maps. Based on the sources of their respective calculations, the Court finds that those of the Town and MS&G are more accurate and reliable.
Relying upon the town's figures, the court concluded that the petitioners erroneously included one 0.94 acre lot (the St. Laurent property) within the 100-foot boundary, erroneously reported the area of a 0.23 acre lot (the Bouchard property) as 0.69 acres, and erroneously over-reported the area of a third lot (the Clarke property) by 0.23 acres. Subtracting the difference from the petitioners' reported acreage total, the court found that even including the Allenstown properties, the petition fell below the required twenty percent threshold.
On appeal, we have accepted two of the plaintiff's issues for review: first, whether the trial court erroneously excluded the Allenstown signers from the petition; and second, whether the town should have been permitted to use data outside of the town tax maps to rebut the acreage calculations the petitioners made by using these maps. Both issues present questions of statutory interpretation.
[I]nterpretation of a statute is a question of law, which we review de novo. The starting point in any statutory interpretation case is the language of the statute itself. Where the language of a particular statutory provision is at issue, we will focus on the statute as a whole, not on isolated words or phrases. We will not consider what the legislature might have said or add words that the legislature did not include.
Appeal of Tennis, 149 N.H. 91, 93 (2003). We consider each issue in turn.
The first question is whether a protest petition may include owners of land not located in the municipality in which the petition is submitted. Both parties cite RSA 675:5 to support their argument. The town cites the requirement in RSA 675:5, II(a) that:
The owners signing the petition shall identify themselves on the petition by name and address, and by address of the property involved, or by lot and map number, or by whatever other means is used within the town or village district to identify the land in question, so that the selectmen or commissioners may identify such owners as interested and affected parties.
(Emphasis added).
The town argues that "the town or village" must refer to the municipality in which the petition is filed. The town argues that by using the article "the" instead of "their," the legislature intended protest petitions to be limited to owners whose property is within "the" municipality. We disagree.
The purpose of RSA 675:5, II(a) is not to define the class of eligible petition signers, but to establish a standard by which "the selectmen or commissioners may identify such owners as interested and affected parties." RSA 675:5, II(a). In any case, the phrase "the town or village" could just as easily refer to the municipality in which the property is located as to the municipality in which the petition was submitted. Thus, we do not interpret RSA 675:5, II(a) as limiting protest petitions to owners of land within the municipality in which the petition is filed.
The plaintiff, on the other hand, cites the language in RSA 675:5, I-a defining the eligible class of petition signers. Under this subsection, signers must be either "[t]he owners of 20 percent of the area of the lots included in [the] proposed change" or "[t]he owners of 20 percent of the area within 100 feet immediately adjacent to the area affected by the change or across a street from such area." RSA 675:5, I-a. This provision does not require the signers to be owners of property located in the municipality in which the petition is filed. By its plain terms, RSA 675:5, I-a thus encompasses all land within 100 feet of the area subject to the change, regardless of whether it is within the same municipality. Because the legislature declined to impose additional requirements, we will not read them into the statute. See Appeal of Tennis, 149 N.H. at 93.
The town argues that permitting owners of property in Allenstown to participate in the petition would create an "absurd" and "unjust" result because persons who do not own land, pay taxes, or vote in a municipality could nevertheless "participate in that municipality's legislative process" by requiring a two-thirds majority vote to enact zoning changes. We have stated, however:
When an ordinance will have an impact beyond the boundaries of the municipality, the welfare of the entire affected region must be considered in determining the ordinance's validity.
. . . .
Municipalities are not isolated enclaves, far removed from the concerns of the area in which they are situated. As subdivisions of the State, they do not exist solely to serve their own residents, and their regulations should promote the general welfare, both within and without their boundaries.
Britton v. Town of Chester, 134 N.H. 434, 440-41 (1991).
For this reason, municipalities...
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